Law & Disorder

The Supremes Sing Out of Tune

More Rulings from the Recent Court Session

By A.J. Wagner

As I write this we are awaiting the Supreme Court’s decision on the Affordable Care Act. I will write about that next week after I have a chance to analyze it. By then you may be sick of it, but I will try to find some unique insights to make it interesting.

Last week I began a review of some of the United States Supreme Court decisions for the term that ended last week. I will continue this review for a few weeks, but for this week I will touch on a few decisions that came out in June starting with Arizona v. United States, the immigration decision.

Back in January, I wrote about the challenges being made to federal power by some states. I wrote, “The Supreme Court has also agreed to take up the case of Arizona v. United States. This case is a challenge to Arizona’s immigration law known as S.B. 1070. The U.S. will argue that only it can make rules regarding immigration pursuant to the power to make ‘uniform’ rules of naturalization. Arizona insists that it is only trying to supplement that law, not interfere with it.”

Arizona lost three of the four parts of its law that was being contested as unconstitutional. The federal government, according to the Supremes, is the sole authority as to immigration. The Supreme Court let stand a provision allowing police to ask individuals for proof of legal residency if they come across a person they reasonably suspect of being here illegally. If you go back to the oral arguments, the justices seemed to be bothered that they might strip police of the ability to stop a person who they reasonably believe is committing a crime. That’s what police do. Although the provision survived constitutional muster for now, the court warned that if the power to stop was used in a discriminatory way, it could be stricken down the road.

When announcing the decision Justice Scalia went into a rant about state’s rights and speculated that Arizona would not have joined the Union if they had known they would become subject to the federal government in this way.

In a bit of irony this decision was announced on the same day that the Supreme Court announced its decision not to consider a case out of Montana where that state’s Supreme Court asserted their right to disallow corporate contributions for state elections in contravention to the United States Supreme Court decision in Citizens United v Federal Elections Commission. Scalia sided with the majority in denying their argument for state’s rights.

This brings up another inconsistency shown by the conservative majority last month. In the case of Citizens United v Federal Elections Commission, the Court allowed corporations to spend their dollars on campaigns. Since corporate money is actually the money of the shareholders, the question of shareholder permission came up in the decision. The Court refused to address this matter of corporate governance saying, “There is, furthermore, little evidence of abuse that cannot be corrected by shareholders ‘through the procedures of corporate democracy.’”

In last month’s decision, Knox v. Service Employees International Union, Local 1000, the Supremes dictated a new rule to unions requiring that any additional dues imposed by the union for political purposes can only be collected from those members or non-members who consent. This rule contravenes a decades long rule that required notice to members and a chance for them to opt out of the contribution.

In both Citizens United and Knox, the conservative majority went out of their way to get to the conclusions they reached. There is a longstanding rule of jurisprudence that the Court only addresses the issues presented. Further, when dealing with concerns of constitutionality, the Court should make their decision as narrow as possible. These two decisions violate those rules.

In Citizen’s United the Court was asked to determine if a company could show an anti-Hillary Clinton film which the Federal Elections Commission barred as a corporate contribution to campaigning. After hearing arguments, the Court asked for additional briefs and argument broadening the case to determine whether they should strike down rules that allow restrictions on corporations’ independent spending during campaigns.

In Knox the Court was faced with a question as to the legality of unions placing a special assessment on its members and non-members for political causes without proper notification. Here the Court went beyond just answering the question by applying new rules to unions.

Between Scalia’s rant, the expansion on decisions to create conservative results not sought, and how the Court treats corporations differently than it treats workers and shareholders, a legitimate question can be raised about the improper political advocacy of the Roberts Court. The question can easily be answered, “Yes. The third branch of the government is now a second legislative branch.”

Disclaimer: The content herein is for entertainment and information only. Do not use this as a legal consultation. Every situation has different nuances that can affect the outcome and laws change without notice. If you’re in a situation that calls for legal advice, get a lawyer. You represent yourself at your own risk. The author, the Dayton City Paper and its affiliates shall have no liability stemming from your use of the information contained herein.

A.J. Wagner is an attorney with the law firm of Flanagan, Lieberman, Hoffman and Swaim at 15 W. Fourth Street in Dayton. A.J. and his firm would be glad to help you with all of your legal needs. You can reach A.J. at (937) 223-5200 or at

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A.J. Wagner is an attorney with the law firm of Flanagan, Lieberman, Hoffman and Swaim at 15 W. Fourth Street in Dayton. A.J. and his firm would be glad to help you with all of your legal needs. You can reach A.J. at (937) 223-5200 or at

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